Raymond C. Bontempi

Patent Trials and Appeals Board

Sep 30, 2019

11207979 - (D) (P.T.A.B. Sep. 30, 2019)

UNITED STATES PATENT AND TRADEMARK OFFICE
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
Address: COMMISSIONER FOR PATENTS
P.O. Box 1450
Alexandria, Virginia 22313-1450
www.uspto.gov
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
11/207,979 08/19/2005 Raymond C. Bontempi 16113-6206001 7976
26227 7590 09/30/2019
FISH & RICHARDSON P.C.
P.O. BOX 1022
MINNEAPOLIS, MN 55440-1022
EXAMINER
SHIBRU, HELEN
ART UNIT PAPER NUMBER
2484
NOTIFICATION DATE DELIVERY MODE
09/30/2019 ELECTRONIC
Please find below and/or attached an Office communication concerning this application or proceeding.
The time period for reply, if any, is set in the attached communication.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address(es):
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PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte RAYMOND C. BONTEMPI
____________

Appeal 2018-009094
Application 11/207,979
Technology Center 2400
____________

Before MAHSHID D. SAADAT, JASON V. MORGAN, and
JOHNNY A. KUMAR, Administrative Patent Judges.

SAADAT, Administrative Patent Judge.

DECISION ON APPEAL

Appellant1 appeals under 35 U.S.C. § 134(a) from a Final Rejection of
claims 1–7 and 17–19, which are all the claims pending in this application.2
We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.

1 We use the word “Appellant” to refer to “applicant” as defined in
37 C.F.R. § 1.42. Appellant identifies the real party in interest as Google,
LLC. Appeal Br. 1.
2 Claims 8–16, 20, and 21 have been canceled previously. See Appellant’s
after-final amendment filed Nov. 29, 2017 (canceling claims 8–16, 20, and
21, which was indicated as entered in an Advisory Act. mailed Dec. 15,
2017).
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STATEMENT OF THE CASE
Introduction
Appellant’s invention relates to selective recording for digital video
recorders using implicit correlation. Spec. ¶ 1.
Claim 1 is illustrative of the invention and reads as follows:
1. A method of identifying programming estimated to
meet a preference of a user, the method comprising:
receiving, from a remote device, a user recording log
comprising implicit data associated with programs recorded by
the user over a time period, the implicit data comprising data
indicative of recorded program viewing history including a
percentage of a particular recorded program viewed by the user,
the percentage of the particular recorded program being less
than a full length of the particular recorded program;
estimating a similarity of the user recording log of the
user to each user recording log of user recording logs
corresponding to a plurality of other users, the similarity of the
user recording log of the user to the user recording log of a
given other user being based on a number of program IDs
concurrently contained in the user recording log of the user and
the user recording log of a given other user and the percentage
of the particular recorded program corresponding to the
program ID viewed by the user and a percentage of the
particular recorded program viewed by the given other user;
creating a preference profile for the user based on a set of
user recording logs for other users having at least a threshold
similarity to the user recording log of the user, the preference
profile including one or more programs identified from the set
of user recording logs; and
identifying a program, from the preference profile, for
recording from content to be broadcast in the future.
The Examiner’s Rejection
The Examiner rejected claims 1–7 and 17–19 under 35 U.S.C.
§ 103(a) as being unpatentable over Robarts et al. (US 2005/0278741 A1;
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pub. Dec. 15, 2005) and Leurs (US 2006/0101490 A1; pub. May 11, 2006).
Final Act. 7–12.
Prior Board’s Decision on Appeal
In the Decision on Appeal dated September 24, 2015 (“Decision”), we
affirmed the rejection of claims 1–20 as being unpatentable over Robarts and
Leurs. Claim 1 on appeal is substantially similar to claim 1 in the prior
Decision. To the extent Appellant’s arguments are similar to those
presented in the prior Decision, we will not repeat our analysis and will refer
to the prior Decision.

ANALYSIS
We have reviewed the Examiner’s rejections in light of Appellant’s
arguments that the Examiner has erred. We disagree with Appellant’s
conclusions. The Examiner has provided a comprehensive response,
supported by sufficient evidence, to each of the contentions raised by
Appellant. We adopt as our own (1) the findings and reasons set forth by the
Examiner in the action from which this appeal is taken and (2) the reasons
set forth by the Examiner in the Examiner’s Answer in response to
Appellant’s Appeal Brief (see Ans. 12–21). However, we highlight and
address specific findings and arguments regarding claim 1 for emphasis as
follows.
In rejecting claim 1, the Examiner relies on Robarts as disclosing the
recited receiving, estimating, creating, and identifying steps, but not “the
implicit data comprising data indicative of recorded program viewing history
including a percentage of a particular recorded program viewed by the user,
the percentage of the particular recorded program being less than a full
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length of the particular recorded program.” Final Act. 7–10. The Examiner
relies on Leurs as disclosing the missing limitation. Final Act. 10 (citing
Leurs ¶¶ 36, 39, 42, 44, 55). With respect to the reason for the combination,
the Examiner concludes
Therefore in light of the teaching in Leurs it would have
been obvious to one of ordinary skill in the art at the time the
invention was made to modify Robarts by including in a
viewing history an indication that shows a percentage of an
entire record program which is viewed in order to indicate to
the user how much time of programme can be presented
currently and perform necessary changes on the selection list as
desired by the user by showing the remaining amount to be
viewed.
Final Act. 11.
Discussion
First Issue
Appellant contends:
First Robarts, either alone or in combination with Leurs,
does not teach or suggest a similarity based on “based on a
number of program IDs concurrently contained in the user
recording log of the user and the user recording log of a given
other user . . .” This is because Roberts and Leurs, when
combined, only teach the identification of programs that match
search criteria for a set of respective queries generated for
users. But the matching of search results (programs) to queries
is not a similarity “based on a number of program IDs
concurrently contained in the user recording log of the user and
the user recording log of a given other user.” For example, two
logs may have multiple matching programs, but a query may
only identify a single matching program.
Appeal Br. 2 (emphasis omitted). By referring to paragraphs 79, 92, and 93
of Robarts, Appellant asserts “this teaching of Roberts is only for generating
queries for the viewer to identify programs the viewer is likely to watch
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based on ‘viewing preferences of the viewer,’” but “does not take into
account the similarity features of other users as claimed.” Appeal Br. 3–4
(emphasis omitted); see also Reply Br. 2.
The Examiner responds by pointing to paragraph 94 of Robarts
indicating that some programs satisfy both a single query and more than one
query such that a search for “Seinfeld” by one user and another query for
“comedies” by another user are combined to find a program that meets the
family parameters. Ans. 14 (citing Robarts ¶¶ 93, 94). The Examiner
further finds Robarts discloses the viewing preferences based on comedies
or a particular comedy program are determined based on similarities of the
user recording logs and a correlation factor, such as a percentage. (Ans. 14
citing Robarts ¶ 77).
We agree with the Examiner’s finding that Robarts’ combined queries
are based on estimating a similarity of user recording logs among different
users. We also agree with the Examiner that, consistent with Appellant’s
Specification (see Spec. ¶ 23 specifying: “viewing history 127 is
illustratively shown in FIG 1 as part of viewer recording log 125 to show an
alternative or optional arrangement”), the user’s recording log includes the
viewing history or list of the recorded programs. See Ans. 14–15. This
interpretation is also consistent with and supported by Appellant’s disclosure
stating that “[i]mplicit data, as used here, means that data which is inherently
associated with a program” and “at a minimum comprises data to uniquely
identify the program such as title or unique program ID.” Spec. ¶ 16
(emphasis added). Additionally, as stated previously in our Decision,
searching for favorite programs meets the recited “estimating a similarity”
among users’ recording logs based on the program title. See Decision 4.
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Second Issue
Appellant contends the combination of the references does not teach
or suggest the estimating step that is based on “the percentage of the
particular recorded program corresponding to the program ID viewed by the
user and a percentage of the particular recorded program viewed by the
given other user.” Appeal Br. 4–5. According to Appellant, Robarts assigns
a percentage of the entire viewing period to each channel to indicate viewer
preference, but does not teach a similarity based on this data. Appeal Br. 5
(citing Robarts ¶¶ 79, 93). With respect to Leurs, Appellant argues the
disclosed sorting of available content based on a duration of the content fails
to teach comparison between profiles. Appeal Br. 5–6 (citing Leurs ¶ 56).
In response, the Examiner explains that the step of estimating a
similarity based on a percentage of the particular recorded program that is
less than the full length of the program is disclosed in Leurs. Ans. 17. We
agree. The Examiner further explains that, in addition to Robarts’ disclosing
a query based on the percentage of the portion watched in the viewer’s
preferred program compared to the entire viewing period, which indicates
the program most watched, Leurs also teaches selecting a program based on
the percentage of the program watched. Ans. 17–18 (citing Robarts ¶¶ 78,
79; Leurs ¶¶ 36–39). As such, Leurs teaches that the duration of the
recorded program watched by a viewer is among the data associated with
programs recorded by a user over a time period, as recited in claim 1. See
also Leurs ¶¶ 41–44 (explaining the relative duration as the percentage of a
program remaining, which may be stored with the content item to show how
much of the program has been viewed). We also agree with the Examiner
that, because the rejection is based on the combination of the references,
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Appellant’s arguments that are against references individually are not
persuasive of error. Ans. 17 (citing In re Keller, 642 F.2d 413 (CCPA
1981); In re Merck & Co., 800 F.2d 1091 (Fed. Cir. 1986)).
Third Issue
Lastly, Appellant argues the proposed combination does not teach or
suggest the creating step of claim 1 because the cited portions of Robarts
relate to a merged query that combines queries in personal folders of each
family member. Appeal Br. 6–7 (citing Robarts ¶¶ 92–94). Additionally,
Appellant asserts the predefined personalized queries in Robarts are not the
same as the recited “‘recording logs’ comprising ‘data indicative of recorded
program viewing history.’” Appeal Br. 8 (citing Robarts ¶ 19).
We disagree. As the Examiner points out, paragraphs 92–94 of
Robarts describe personal folders for each family member which can be
merged or combined to create a family query that either has at least one
program in common or satisfies all the family members’ criteria. See Ans.
18–19. That is, personalized folders including queries specific to a
particular family member (see Robarts Table 1) meet the claim “recording
logs” which, as discussed above, encompasses the viewing history of a user.
See Spec. ¶ 23.
Summary
For the above-stated reasons, we are not persuaded by Appellant’s
arguments that the Examiner erred in finding the disclosures of Robarts and
Leurs teaches or suggests the disputed features of claim 1. Therefore, we
sustain the 35 U.S.C. § 103(a) rejection of claim 1, as well as the remaining
claims which are not argued separately or with sufficient specificity.

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CONCLUSION
We affirm the Examiner’s decision to reject claims 1–7 and 17–19.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv).

In summary:
Claims
Rejected
Basis  Affirmed Reversed

§ 103  1–7 and 17–19
Overall Outcome

1–7 and 17–19

AFFIRMED